| Corletta v Fischer |
| 2012 NY Slip Op 08682 [101 AD3d 929] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Charles Corletta IV, Respondent, v Eva Fischer et al.,Appellants, et al., Defendants. |
—[*1] Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Craig A. Burgess of counsel), forappellants Jayesh R. Mehta, Brijender Batra, and Pulmonary Consultants, P.C., doing business asPulmonary Consultants. O'Connor, McGuiness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, N.Y.(Montgomery Effinger of counsel), for appellant Good Samaritan Hospital of Suffern, N.Y., Inc. Meagher & Meagher, P.C., White Plains, N.Y. (Bruce W. Slane and Christopher Meagher ofcounsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, the defendantsJayesh R. Mehta, Brijender Batra, and Pulmonary Consultants, P.C., doing business asPulmonary Consultants, appeal, as limited by their brief, from so much of an order of theSupreme Court, Rockland County (Walsh II, J.), dated December 21, 2011, as denied theirmotion for summary judgment dismissing the complaint insofar as asserted against them, thedefendant Good Samaritan Hospital of Suffern, N.Y., Inc., separately appeals, as limited by itsbrief, from so much of the same order as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it, and the defendants Eva Fischer, Anupama Pani, andSteven A. Klein, M.D., P.C., doing business as Healthmed Plus, separately appeal, as limited bytheir brief, from so much of the same order as denied their motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe motion of the defendant Good Samaritan Hospital of Suffern, N.Y., Inc., for summaryjudgment dismissing the complaint insofar as asserted against it, and substituting therefor aprovision granting the motion, and (2) by deleting the provision thereof denying that branch ofthe motion of the defendants Eva Fischer, Anupama Pani, and Steven A. Klein, M.D., P.C.,doing business as Healthmed Plus which was for summary judgment dismissing the complaintinsofar as [*2]asserted against the defendant Eva Fischer, andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly denied the motion of the defendants Jayesh R. Mehta, BrijenderBatra, and Pulmonary Consultants, P.C., doing business as Pulmonary Consultants, for summaryjudgment dismissing the complaint insofar as asserted against them. In opposition to thosedefendants' prima facie showing of their entitlement to judgment as a matter of law, the plaintiffraised a triable issue of fact (see Howardv Kennedy, 60 AD3d 905, 906 [2009]).
However, the Supreme Court erred in denying the motion of the defendant Good SamaritanHospital of Suffern, N.Y., Inc. (hereinafter the Hospital), for summary judgment dismissing thecomplaint insofar as asserted against it. "In general, a hospital cannot be held vicariously liablefor the negligence of a private attending physician" (Martinez v La Porta, 50 AD3d 976, 977 [2008]; see Hill v St.Clare's Hosp., 67 NY2d 72, 79 [1986]). Further, a hospital "cannot be held concurrentlyliable with such a physician unless its employees commit independent acts of negligence or theattending physician's orders are contraindicated by normal practice" (Cerny v Williams, 32 AD3d 881,883 [2006]; see Sela v Katz, 78AD3d 681, 683 [2010]; Martinez v La Porta, 50 AD3d at 977).
The Hospital established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiff's decedent was referred to the Hospital by her private physician,and that the treatment of the plaintiff's decedent was performed at the Hospital by privateattending physicians (see Gardner vBrookdale Hosp. Med. Ctr., 73 AD3d 1124, 1124-1125 [2010]). Furthermore, theHospital demonstrated, prima facie, that the Hospital staff did not commit any independent actsof negligence, and that no orders given by any of the private attending physicians werecontraindicated by normal practice. In opposition, the plaintiff failed to raise a triable issue offact (see Schultz v Shreedhar, 66AD3d 666, 666-667 [2009]).
The Supreme Court also erred in denying that branch of the motion of the defendants StevenA. Klein, M.D., P.C., doing business as Healthmed Plus (hereinafter Healthmed Plus), EvaFischer, and Anupama Pani (hereinafter collectively the Healthmed defendants), which was forsummary judgment dismissing the complaint insofar as asserted against Fischer. In opposition tothe Healthmed defendants' prima facie showing, the plaintiff failed to raise a triable issue of factas to the liability of Fischer (see Ballekv Aldana-Bernier, 100 AD3d 811 [2012]; Bellafiore v Ricotta, 83 AD3d 632, 633 [2011]; Soto v Andaz, 8 AD3d 470, 471[2004]). However, the plaintiff raised triable issues of fact as to the liability of Pani andHealthmed Plus (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Therefore,the Supreme Court properly denied that branch of the Healthmed defendants' motion which wasfor summary judgment dismissing the complaint insofar as asserted against Pani and HealthmedPlus.
The parties' remaining contentions either need not be addressed in light of our determinationor are without merit. Rivera, J.P., Chambers, Hall and Lott, JJ., concur.